Public Comment

The video of police stopping three young black people, two men and a woman, for jaywalking, at the corner of Dana St. and Dwight Way, which ends with the woman screaming in the distance as cops throw her to the ground and twist her arms behind her back becomes one of a growing category. This one happened May 2, 2014, in Berkeley. That same week, two others emerged, one at the hands of BART police and the other those of OPD. Both ended with a woman screaming in the distance. On May 20, in Salinas, 60 miles to the south, Carlos Mejia was shot down on a street corner by cops in broad daylight, on video. And Cecily McMillan, who went into convulsions after being beaten and gases during the police suppression of Occupy Wall Street, is convicted of felonious assault on a police officer. These three cases of police harassment and violence are among dozens that have occurred and been videoed in the last few months.

The videos are extant and multiplying. They give us the ability to examine these incidents more carefully. Certain common traits become perceivable when we do. Although, over the years, the primary targets of police violence like this have been people of color, more and more white people are being added to this list of victims. The police excuses stay the same – “I felt threatened.” “The officer was only doing his duty.” “We have investigated and found that the officer acted properly, and that no crime was committed by the officer.” Etc. But somehow, we don’t hear as much about “rogue cops” any more. The police have retreated to more technological responses. They are now promoting a law making it illegal to video police in the “line of duty.” And a small news item recently reported that Apple is working on a device that will shut down all iPhones in a given radius of the police action by pushing a button. While the general term for this is "unaccountability," it reflects a sense that “rogue” has become more departmental.

Let us look at this jaywalking incident more carefully, in light of various other stories recently reported at a NAACP townhall meeting on May 10 at the South Berkeley Library. [http://www.berkeleyside.com/2014/05/09/berkeley-police-stop-sparks-racial-controversy/]

The Jaywalkers of Berkeley

The date is May 2, 2014. Three black university students, two men and a woman, all walking together, were stopped by two cops for jaywalking at Dana and Dwight Way. When the video of the incident begins, one of the students, Calvin “Jevon” Cochran, is in handcuffs, standing in the street between two cops (Dana is blocked off on that block). The other two are questioning the cops as to why they have put their friend in handcuffs. They are understandably upset by this. In response, they are told to back away and stand on the sidewalk. Their questions gradually become accusatory, tinged with outrage and a sense that they are sick and tired of being stopped by cops – for walking while black (like driving while black), and of the racial profiling that is clearly being enacted. Their outrage escalates as a third and fourth cop show up, and then a fifth.

At the NAACP meeting, other people of color came forward to tell similar stories of pointless stops, seemingly just to delay the target subject or somehow find a reason for arrest. One white student told the story the she was walking with a black student, jaywalked, got stopped, and only the black man walking with her was put in handcuffs.

As the outrage heightens, one cop tries to grab the arm of the woman, LaTasha Pollard. She tells him not to touch her, and when he tries again, she leaves. He chases her, grabs her around the waist, and throws her to the ground. He twists her arms behind her back and handcuffs her while she is screaming in pain.

Jaywalking is an infraction, for which only a citation is issued. Instead of issuing a citation, the cops put one of the students in handcuffs, and call for backup. Since the students didn’t run, nor withhold ID, the only thing that happened is that they disagreed with being stopped, and objected. We know this to be a fact since, at a different meeting to answer questions about this incident, the police quote what these students said. In effect, this man is in handcuffs because he has talked back. Whatever was said between these students and the cops, it remains the reason extant for handcuffing.

Now, the three of them are standing there, talking to the cops in their own voice, not in a voice that pretends to be polite or obeisant, as is so often dictated. And the final stage of the incident (physical harassment) begins with an attempt to grab Pollard, threatening her by grabbing for her, and then physically hurting her in the act of arresting her.

It doesn’t matter that all this is a problem the cop created by simply not issuing a citation. The onus of the situation is shifted onto those who speak for themselves. And all they are doing is speaking. Whatever they say becomes a source of futher police harassment. They assert that it is because they are black, which the cops of course deny, but which they have seen before. As the incident moves through is stages from infraction to harassment to violence, the dynamic of its transformation is simply people standing up for themselves, demanding respect by demanding to know why the police are doing what they are doing.

At a public meeting with the police about a week after the incident, police said officers are not required to inform someone prior to handcuffing them. That is simply astounding. It means that a cop can handcuff someone arbitrarily, without discussion, due process, or respect. As the jaywalking incident shows, speech can get you put in handcuffs now.

It is a clear indication that the police have become a law unto themselves. We are no longer secure in our person in the face of that arbitrarity. This very rule, which the police trumpet about themselves and their power without shame, is itself a violation of human rights. And that means that human rights are violated on the streets of US cities every day.

In other words, the students’ objections are interpreted as resistance. At the police meeting, Police Chief Meehan himself said, “The remedy happens afterward. … The courts have not held that people are allowed to fight with officers during a stop.” So much is contained in this statement. He is stating baldly that, in the moment, there is to be no due process, and that what the students did (speak up for themselves) is already interpreted by the police as “fighting back.” The police create the incident by handcuffing Cochran, having rationalized that violence in advance by having already chosen to see speech as "fighting."

And then, what is “due process.” “Due process” names the judicial norm that a person is not to be deprived of their freedom or their property without a fair hearing, in which they get to have a say in the matter (that is, the right to speak). It means that one can answer the charge that can possibly lead to loss of freedom or property. And this is an essential element of a just and democratic society.

For the police, due process comes afterward. Meehan said, “The remedy happens afterward.” But "afterward" is not due process. What happens "afterward" is appeal. Appeal is what one does after one feels the state has committed a wrong. Appeal is not due process, it is appeal. Due process means one cannot be deprived of freedom without having something to say about it. Appeal and due process are different, though it appears that for the police, that difference disappears under their assumption of impunity.

Handcuffing means to deprive a person of their freedom. To do so without discussion, without explanation, without the participation of on-lookers and neighbors, means it occurs without due process. Withholding due process is a violation of human rights.

To see the reality of the difference between appeal and due process, consider the case where the police have killed someone. Appeal then is impossible, and moot. But the person has nevertheless been denied due process in being deprived of life, as wholly relevant to what has heppened to him or her.

What this shift of domain represents, from stopping someone for an infraction to holding them for speech, questioning, disobedience, and refusal, is a shift to the political domain. To demand obedience, to demand silence, to claim rights of operations open to no questioning or discussion in the moment, are all actions that pertain to political power, in the political arena. In this case, the shift to the political domain is prepared by racial profiling.

Profiling has nothing to do with law enforcement (and law enforcement is the usual mode by which police approach white people). In law enforcement, a crime is committed and the police search for a suspect. In profiling, the police commit an act of suspicion, and then search for (or create) a crime to pin on the target of their suspicion.

In sum, this type of police procedure has three stages. An infraction is observed. The legal domain of a citation is shifted (escalated) to the political domain by the police responding to the reaction of the students to being stopped as "fighting," as resistance, as disobedience. That now becomes the focus of police attention. Having created the situation in which they can now focus on the students and not the infraction, the perceived disobedience can then be met by a demand for obedience, and violence.

That is, the police have created a situation of arbitrarity in response to which objections and questions actually become relevant to a person’s self-respect and dignity, but which self-respect and dignity are then criminalized as resistance and disobedience. The students objections to being stopped arise from an awareness that they and other people of color are stopped all the time gratuitously in Berkeley (as testified to in the series of NAACP hearings that have been going on over the past year).

It is not that the original infraction is raised to the level of crime, but that the infraction is simply used as an excuse to criminalize the other as resisting authority. Their objection signifies an insistence on a social status that is being withheld from them (the social status of whites). This withholding of social status, a status that warrants treatment in terms of the infraction and not in terms of speech, has tragically become culturally acceptible, and any insistance on that status has become criminalizable by the police. In this sense, when the police refer to these people as suspects, they are further denying them their social status, given that the only laws broken by them, for which the term “suspect” might be relevant are laws that the police have become in their person, as laws unto themselves. One is not a "suspect" for having refused a command. The fact that this happens again and again in this city, in other cities, means that there is a routine involved.

In the process, the students end up in a double bind. To defend one’s dignity is to be criminalized, and not to defend one’s dignity, to lose it to arbitrary authority, is to be reduced to lesser social status. To remain silent is to betray one’s self-respect, and to speak is to be criminalized for that same self-respect.

It brings to mind the double bind that Richard Wright describes in his autobiographical book, Black Boy. Wright had gotten a job in a lens grinding shop (in Jim Crow Mississippi, 1920s), working with two white men named Reynolds and Pease.

[Pease approaches Wright and says] “Richard, Reynolds here tells me that you called me Pease.” … I stiffened. A void opened up in me. I knew that this was the showdown. … If I had said: No, sir, Mr. Pease, I never called you Pease, I would by inference have been calling Reynolds a liar; and if I had said: Yes, sir, Mr. Pease, I called you Pease, I would have been pleading guilty to the worst insult that a Negro can offer to a southern white man. (189,HarperPerennial,1998)

There is no way out. The double bind’s purpose is only to terrorize. It marks the preparation of violence against its victim. It is an institutional double bind insofar as either fault committed by Wright in that situation is already established as a cultural institution – just as the ability of the police to profile, to use color as a source of suspicion, has been legitimized by Supreme Court decision (cf. Michelle Alexander, The New Jim Crow). Today, the ability of the police to create situations by demanding obedience where resistance would be the natural response have been rendered culturally acceptible.

As an institutional part of Jim Crow, the double bind’s appearance in this minor police incident of harassment in 2014 signifies that institutional racism has indeed been integrated into police activity.

If democracy were to be instituted in this country, the following would need to be established first. Suspicion itself must cease to be sufficient cause to stop a person. A cop must see a person break the law, or have witnesses. If equality between people is to be established, as a prerequisite for democracy, the people must have the ability to question what the police are doing in the moment, and have their questions answered to their satisfaction within the purview of law, of fairness, and of justice. The police must be able to explain fully the reason for their actions in approaching or stopping a person. If the police cannot do this, their action must be taken as illegitimate, and stopped immediately. Questioning the police in the “line of duty” must be decriminalized if the process of regimentation of society implicit in the police demand for obedience is to be countermanded.